Mahmoud Illean/AP Photo
Israeli security forces detain a Palestinian activist in the Old City of Jerusalem, October 2, 2023.
Hamas’s harrowing attacks against Israel on October 7th have sent Israelis into cycles of shock, grief, and fear. The processing of the events and their long-term implications will continue to unfold for a long time.
Many in Israel and the United States draw analogies to the September 11 attacks when talking about October 7th. It’s a fitting comparison given that both involved the deliberate mass killings of innocent civilians, and both resulted from major intelligence failures by national-security apparatuses. It also helps explain a different response taking hold in Israel right now—the attempts to stifle dissent, engage in profiling that identifies all Palestinians as the enemy, and circumvent core legal protections against arbitrary arrests and surveillance, all in the name of protecting national security. While the circumstances differ on many levels, Israel could benefit by learning from the U.S. experience, including its pitfalls.
Following 9/11, the Bush administration pushed policies that directly conflicted with traditional constitutional protections, in the name of prosecuting the war on terror. New laws were passed that granted unprecedented surveillance authorities to the government, like the USA PATRIOT Act, while new practices took hold that allowed for interrogations involving torture, the roundups of Arab, Muslim, and South Asian residents, and the stifling of dissent.
These mass arrests and interrogations, torture tactics, and new surveillance tools have been widely criticized for their excesses, including by government reports and court rulings.
Israel has a long history of grappling with the tension between civil liberties and national security. It has lived partially under emergency laws since becoming a nation in 1948, with segments of the nation’s legal code adopted from the British Mandate period. But even by these standards, what’s currently happening is deeply concerning and should give pause to those who care about democratic principles.
Israel has a long history of grappling with the tension between civil liberties and national security.
Israel doesn’t have a constitution. Instead, a compromise reached in 1950 adopted a series of Basic Laws that could one day form a written constitution, but whose legal supremacy continues to be debated. The Supreme Court is the main body in Israel that is supposed to protect those rights included in the Basic Laws.
Before the October 7th attacks, Israel was gripped by months of mass protests over this very question of what role should constitutional rights and checks and balances play in its system of government and how should the judiciary enforce these protections, if at all.
But everything changed on October 7th. While the protests stopped, the core issues they debated only became more pronounced. What should democracy look like inside Israel post-October 7th? Will there be checks and balances and protections for core individual freedoms, like freedom of speech, or will we see the establishment of another Hungary, with the growth of authoritarian tendencies and crackdowns on dissent? In times of crisis, checks and balances, respect for individual freedoms, and equal protection of the laws are most needed, as they are pitted against questions of war and survival.
Today, Israelis who want to protest government policies are harassed, intimidated, and arrested. It doesn’t matter whether the protests are against the government failure to get hostages released or protests against Israel’s killings of civilians in Gaza. Demonstrators are facing restrictions by police, violence by counterprotesters, and even violence by the police. And there is a growing hunger to expand even further government powers to stifle dissent.
Palestinian citizens of Israel bear the brunt of attacks on free speech, but so do Jewish Israelis who voice their dissent to current government policies. The new attempts to stifle dissent have a 21st-century frame, as the public arena has shifted online, and the government is using its arrest powers to stifle online speech.
At least 146 criminal investigations have been initiated since October 7th for speech-related offenses, including support for terrorism, with the majority of arrests for social media posts. According to reporting in Israeli media, Mohand Taha, a stand-up comic from the Lower Galilee who has 900,000 followers on Instagram, posted, “The eye weeps for the residents of Gaza.” Forty minutes later, 20 police officers came to his house to arrest him for supporting a terrorist organization. In another case, an Arab citizen of Israel was interrogated for hours by police after posting a photograph on Facebook with the caption “The heart is with Gaza,” and another one about Gazan deaths: “140 children. 140 dreams. A scar in the heart.” Ten police officers came to her home while she was breastfeeding her child and took her to the police station for interrogation.
Arrests for social media posts may sound trivial, but imagine people standing in Times Square voicing concerns with the Biden administration’s approach to the Israel-Hamas War, only to be swept up by FBI agents. It is precisely in times of national crisis that public dialogue is most needed and the right to demonstrate should receive the most protections. Israeli police should be protecting demonstrators from violence, not themselves engaging in violence against demonstrators.
But attacks on free speech aren’t limited to social media sites. In the early weeks following October 7th, Israeli police attempted to ban all public demonstrations. Police Commissioner Kobi Shabtai said, “Anyone who wishes to identify with Gaza is welcome to—I will put him on the buses that are heading there now.” The police banned protests in Arab cities concerning the war, citing security concerns. The Israeli government has even attempted to pass new laws, reminiscent of the USA PATRIOT Act, like a bill passed earlier this month that bans the viewing of media published by Hamas, punishing it with up to a year in prison.
Palestinian citizens of Israel bear the brunt of attacks on free speech, but so do Jewish Israelis who voice their dissent to current government policies.
Arab citizens of Israel have been looking for ways to express their solidarity with Gazan civilians and continue to face attacks by the government. They tried to organize a meeting for Jewish and Arab leaders, which was blocked by the police. They applied for permits for a demonstration in Um El-Fahem, a major Arab city, and that request was denied. When the Supreme Court refused to intervene in the decision of the police to deny permits, Arab society leadership then organized a quiet vigil in the main square in Nazareth, which under Israeli law requires no permits. The leadership also asked for the public not to attend in order to prevent escalation, and for leaders only to attend by personal invitation.
In a shocking move, the police arrested the leadership, including past Knesset members and other senior political figures, before the vigil even began. This is an alarming and dangerous move to suppress freedom of protest and expression, led by the minister of national security, Itamar Ben-Gvir.
Organizations that support Palestinian rights or try to defend those accused of incitement or terrorism find themselves targeted. Ben-Gvir criticized Arab judges’ decisions to not extend the detention of suspects for their social media posting by stating, “This is what enemies look like from within.” The Israeli Bar Association even sent an email on October 12th to all lawyers, saying it would pursue legal action against those who publish content on social media that is perceived as incitement to violence.
Local officials in Israel are even trying to ban Arabs from working in their municipalities. Officials in the Tel Aviv suburb of Givatayim shut down construction sites because they didn’t want Arab workers, who are citizens of Israel, to be seen in the city. Only court intervention allowed the work to resume. In Ramat Hasharon, a wealthy suburb, Arab women who worked as cleaners were not allowed to work at their jobs in schools without a special arrangement to work only after classroom hours, without contact with schoolchildren.
Finally, hundreds, if not thousands of Gazans—we do not know the exact number—who were lawfully working in Israel on October 7th were illegally detained in a communications blackout for weeks, without charges or even informing their relatives, let alone lawyers, of their detention. They were released earlier this month and allowed to return to Gaza, and have offered testimonies describing “violent mistreatment by Israeli authorities in detention centers.” Two of these detainees reportedly died in custody. No charges were ever filed.
Recently, the Association for Civil Rights in Israel filed an appeal to the Israeli Supreme Court against new travel restrictions enforced against Palestinians in East Jerusalem, who in effect are citizens of no state as Israel rules over East Jerusalem in contravention of international law. “The Palestinians citizens and residents of Kafr ‘Aqab [a Palestinian village within Israeli lines drawn for the city of Jerusalem] are not the enemy,” the appeal stated, “and even in these trying times, the country must not treat them as such.”
While United States Supreme Court Justice Robert Jackson famously said in 1949 that the Bill of Rights should not be a suicide pact, in seeking guidance on how to proceed during this national crisis, Israeli authorities should look no further than their own Supreme Court. In 1999, in a case involving interrogation techniques by security services, then-Supreme Court President Aharon Barak said: “A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.”
After multiple decades of occupation, the foundations of Israeli democracy have not been stable. However, the past year in Israel has been so tumultuous it is almost incomprehensible. The attempted judicial coup by Prime Minister Netanyahu, the October 7th attack, and the horrific war with Hamas have shaken the foundations of the vision for the future of Israel. Reaffirming a commitment to human rights and democracy is the only path to reimagining a future.
